ML20081M650
| ML20081M650 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 03/28/1995 |
| From: | Lamberski J GEORGIA POWER CO., TROUTMANSANDERS (FORMERLY TROUTMAN, SANDERS, LOCKERMA |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#295-16547 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9504030026 | |
| Download: ML20081M650 (16) | |
Text
['
ha
[
DOCHETED MarchUMPC1995 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
% MAR 29 All:13 Before the Atomic Safety and Licensina Board dI 'EMIdk33%h In the Matter of
)
Docket Nos 42 f
P
)
SO-425p"IK-3 '-
GEORGIA POWER COMPANY,
)
h" et al.
)
Re:
License Amendment
)
(Transfer to Southern
)
Nuclear)
(Vogtle Electric Generating Plant, )
Units 1 and 2)
)
ASLBP No. 93-671-01-OLA-3 GEORGIA POWER COMPANY'S OPPOSITION TO INTERVENOR'S MOTION REQUESTING AN ORDER REOUIRING IMMEDIATE RESPONSE TO DOCUMENT REQUESTE Georgia Power Company (" Georgia Power") hereby responds to "Intervenor's Motion Requesting an Order Requiring an Immediate Response to Intervenor's Requests for Documents," dates March 16, 1995 ("Intervenor's Motion" or " Motion").
This Motion should be denied because Intervenor ha's not shown " good cause" to reopen discovery.
In addition, Intervenor has been dilatory in pursuing such document requests and should not be rewarded for such conduct.
Backaround On February 28, 1995, Intervenor served on Georgia Power by regular mail document requests directed to Georgia Power, and six other document requests directed to individuals.'
These document requests demand identification and production of all documents relating to the NRC's Notice of Violation (NOV) and the Demands for Information issued in May 1994.
The document requests are
' Extremely broad and far-reaching document requests were directed to George Bockhold, Jr.,
Georgie R Frederick, Harry Majors, Thomas V. Greene, C.K. McCoy, and Michael W. Horton.
.)4)7@
9504030026 950328 PDR ADOCK 05000424 Q
PDR_
L t
extremely broad, and it is obvious'that no attempt was made to limit the requests to new information.
The so-called document l
requests also include requests that are in fact interrogatories, asking for example for identification of discussions or' meetings.
Intervenor asked for a response within ten days, ignoring the 30-day period for response provided by the commission's rules.
And most importantly, Intervenor simply ignored the fact that, pursuant to the Licensing Board's June 30, 1994 Memorandum and Order (Request for Extension of Time), discovery closed on August 8,
1994.
Intervenor made no attempt whatsoever in his document requests to ask that the Board reopen discovery.
[
On March 14, 1995, Georgia Power responded to Intervenor's document requests.
Georgia Power objected to the requests because discovery had not been reopened, because'the requests are overbroad, and because the requests seek privileged communications (including documents reflecting attorney-client communications and confidential settlement negotiations).
Georgia Power also noted that the document requests directed to individuals are wholly inappropriate; the NRC Rules of Practica do not provide for discovery against non-parties in this manner.
On March 16, 1995, Intervenor filed his Motion for an order requiring "an immediate response." Although again asserting that an expedited response to his document requests was necessary, Intervenor served this Motion by regular mail.
2 f
,.-,,,,.e..-
Argument Intervenor Has Not Shown Good Cause to ReoDen Discoverv Intervenor has not shown good cause to reopen discovery.
l Intervenor has not even attempted to address the standard set out in the NRC's Rules of Practice for reopening discovery.
Egg 10 C.F.R. S 2.740(b) (1).
Rather, Intervenor appears to assume that 1
there is automatically good cause to reopen discovery with respect to ADX event or document created after the close of discovery.
Intervenor, however, provides no author 3*y for this position, which if true would prevent discovery from ever ending.'
Intervenor's Motion is wholly devoid of any showing of good cause.8 The Motion provides no discussion of his document requests, of the information that Intervenor seeks to elicit at the hearing, of the significance of such information, or of Intervenor's need for such information, other than the bald, unsupported assertion that certain documents are " relevant to the issues in this proceeding and are therefore discoverable."
Motion at 4.
Nor hac Intervenor shown that responding to his i
extremely broad document requests would not result in a delay in 2&ta Draft Systems Inc. v. Alsnach, Civ. Action No. 79-1944,
{
1985 WESTLAW 2813 at 1 (E.D. Pa. Sept. 24, 1985
("a party has a right to the ultimate end to discovery....");) Resolution Trust Corn. v. Hidden Ponds Phase IV Development Associates, -- F. Supp.
-- (E.D. N.Y. 1995) [to be reported at 873 F.Supp. 799), at WESTLAW
- 5 ("There comes a point in time when discovery must end.")
SThe absence of any good cause to reopen discovery in Intervenor's Motion is all the more puzzling given counsel's assurances to the Licensing Board during the March 21, 1995 confetence call that in fact good cause was shown in the Motion.
3 l
the scheduled hearing.
On the contrary, Intervenor represents that such discovery could result in a postponement of the hearing.
Motion n.1.
The possibility of delay in the proceedings, coupled with Intervenor's failure to make any showing of good cause, strongly militates against reopening discovery.
Ett Lona Island Liahtina Co. (Shoreham Nuclear Power
]
Station, Unit 1), ALAB-832, 23 NRC 135, 160-61 (1986)
(" good cause" found for reopening discovery; "no indication that the requested discovery would cause a delay in the hearing schedule").
Intervenor argues that Georgia Power's and the staff's
" delay"* in responding to the document requests requires
" expedited action."
Motion at 3.
Intervenor has no one to blame
~
but himself for any delay.
Intervenor was provided a copy of the Modified NOV by letter from NRC counsel on February 22, 1995.
Moreover, he was provided the NRC Staff Coordinating Group's analysis of Georgia Power's response to the NOV (which forms the basis of the Modified NOV) on March 3, 1995.
He knew that discovery was closed and that it would take some time for the Board to act on any request to reopen discovery.
If Intervenor believed that " highly relevant," material information was raised by the Modified NOV which was "necessary for the creation of an adequate record," and if he truly wished to obtain information on
'The Rules of Practice allow for 30 days to respond to a document request.
10 C.F.R.
S 2.741(d).
Therefore, Intervenor cannot complain about the diligence of Georgia Power or the staff, both of whom objected to the document requests weeks before they were required to do so under the Rules of Practice.
4 w
7 s.
.6 an expedited basis to avoid delaying the hearing, he should have immediately alerted the Board and the parties that additional discovery would be necessary and moved as expeditiously as possible to reopen the discovery process.
Instead of timely-raising his perceived need for additional discovery, Intervenor i
first served document requests dated February 28, 1995 on the parties lar regular mail.
Intervenor's subsequent Motion, too, was served only by regular mail weeks later.
Intervenor's behavior has been dilatory throughout, and, if anything, appears
~
to be more consistent with a dessre to delav the hearing, in marked contrast with the sense of urgency Intervenor attempts to paint in his Motion.
Intervenor's dilatory tactics should not be rewarded by delaying the hearing.
Egg Georaia Power Connany (Vogtle Electric Generating Plant, Units 1 and 2), Nov.
9, 1994 slip op. at 3 (motion to reopen discovery denied because "Intervenor has not shown due diligence in protecting his rights" and motion to reopen was " untimely"); Paul Kadair. Inc. v. Sony Cornoration of America, 694 F.2d 1017, 1031 (5th Cir. 1983)
("[D)iscovery may be limited if dilatorily sought.").
See also U.S. v. Bob Stofer oldsmobile-Cadillac. Inc., 766 F.2d 1147, 1153 (7th Cir.1985) ("A party who has been dilatory in discovery may not use Rule 56(f) to gain a continuance where he has made only vague assertions that further discovery would develop genuine issues of material fact."); comeaux v. Uniroval Chemical Coro.,
849 F.2d 191, 194 (5th Cir. 1988) (district court properly quashed subpoena for company records as untimely where subpoena 5
p E
was filed two days before trial and "was in effect a notion for i
additional discovery")..
Intervenor next argues that he has been deprived of relevant
.i agreements and documents.
Motion at 4.
Intervenor's argument is i
i flawed for several reasons.
First, the underlying events i
occurred in 1990, and Intervenor has conducted very extensive i
discovery, including voluminous document requests, detailed interrogatories and literally dozens of depositions.
As a s
result, Intervenor has knowledge of the operative facts.
Given these prior discovery opportunities, and the potential for delay in this proceeding Intervenor has failed to make any showing of need for his requests.
Second, Intervenor ignores the wealth of information that both the NRC Staff and Georgia Power have provided voluntarily and in a timely fashion after the close of discovery.
This information provides the Intervenor with " mutual knowledge of all the relevant facts," including the positions of Georgia Power and the NRC Staff.
On February 3, 1995, Georgia Power provided the Board and the parties two letters dated l
February 1, 1995 (one from Georgia Power and'one from George Bockhold) submitted to settle the NOV.
On February 22, 1995, the 5 Intervenor's depositions of approximately thirty-five Georgia Power or Southern Nuclear employees were conducted after the issuance of the NOV in May, 1994.
Intervenor therefore had an opportunity to question, and did question, these employees about i
the events covered by the NOV.
In addition, Intervenor was given i
the opportunity to depose the designated NRC witnesses -- who served on the coordinating Group and reviewed Georgia Power's NOV response -- but waived this opportunity by failing to arrange for such depositions in March, 1995, in accordance with the Board's established schedule.
6 1
/
~NRC Staff transmitted to the Board and the parties the revised NOV and' letters to the individuals who had previously received Demands for Information.
On March 3, 1995, the NRC Staff provided to the Board and the parties a review by the NRC Staff l
Coordinating Group and a review by the Office of Investigations of Georgia Power's response to the NOV and the individual responses to the Demands for Information.
On March 20, 1995, the i
NRC Staff provided to the Board and the parties Georgia Power's March 1, 1995 letter transmitting payment of the civil penalty and the NRC Staff's March 13, 1995 letter acknowledging that payment.
Intervenor has not addressed why he needs to supplement this extensive documentation provided by the NRC Staff and by Georgia Power with yet additional discovery.
Intervenor also asserts that "[t]his Board and the parties were all aware-that the NOV was relevant to this proceeding and that Intervenor would be expected to file discovery once NRC Staff took its final action."
Motion at 4.
This assertion is untrue.
Intervenor has known for months that the NRC Staff was nearing a resolution of the NOV, but has never sought to include any additional discovery period in schedules proposed, discussed, i
and agreed to.
For example, Intervenor's Schedule for Phase II, submitted on January 4, 1995 at the Board's request, made no allowance for any further discovery on the NOV.
The only additional discovery reflected in Intervenor's schedule were l
three days to complete depositions of NRC witnesses originally scheduled to be deposed in December.
l l
-... ~
l-Isimilarly,-the schedule approved by the Board after a telephone conference on January 18, 1995 included no time for f
additional. discovery on the NOV, nor had Intervenor'ever sought it.
333 Memorandum and order. (Schedule for Phase' II), dated i
January 18, 1995.
The Board did allocate-three days, from March 15 to March 17, to complete the Staff depositions that had been deferred from December.
Intervenor, however, made no attempt to utilize this opportunity to conduct further discovery.
He made no arrangements to depose any Staff witnesses even though he had been aware since February 3, 1995_that Georgia Power was-seeking to settle the NOV and had been involved in settlement discussions with NRC counsel.'
Intervenor should not now be rewarded for his lack of diligence in pursing discovery, and for his delay in notifying the parties and the Board of the alleged need to take further discovery.
gag Cleveland Elec. Illuminatina i
G22 (Perry Nuclear Power Plant, Units 1 and 2), LBP-83-79, 18 NRC-1400, 1402 (1983) (denial of motion to reopen discovery; intervenor failed to notify Licensing Board in a timely fashion of dissatisfaction with discovery process).
The cases cited by Intervenor do not support the request to reopen discovery.
Intervenor cites the cases for the general propositions -- not disputed by Georgia Power -- that the discovery rules "are to be accorded a broad and liberal Georgia Power's February 1,
1995 letter to the NRC, transmitted to the Board and parties on February 3,1995, states on the first page that there had been settlement discussions between counsel.
8
1-
~ treatment,".Hickman v. Tavlor, 67'S. Ct. 385, 392 (1947) (ggs also Leksi. Inc. v. Federal Insurance Co.,
129 F.R.D. 99, 104 (D.N.J. 1989); Katz v. Batavia Marine'& Soortina Sunolles.
Inc.,.
984 F.2d 422, 424 (Fed.Cir. 1993)), and that " discovery is not limited to issues raised by the pleadings.
OL.enheimer Fund. Inc. v. Sanders, 98 S. Ct. 2380, 2389 (1978) (see also Transcontinental Fertilizer Co. v. Samsuna Co.,
Ltd., 108 F.R.D..
650, 652 (E.D. Pa. 1985); Marker v. Union Fidelity Life Insurance C9x, 125 F.R.D.
121, 124 (M.D. N.C. 1989)).
One cannot conclude on the basis of these very elementary principles regarding the discovery process that Intervenor is entitled to discovery irrespective of whether he has shown good cause therefor or whether he has been dilatory in seeking such information.
Indeed, the very cases cited by Intervenor uniformly affirm that, despite the liberal construction of the discovery rules, limits must be placed on the process, particularly if, 1
as here, the discovery sought is untimely, abusive, or involves privileged
[
information.
233 Hickman, 67 S. Ct. at 394 ("Not even the most liberal of discovery theories can justify unwarranted inquiries into the flies and the mental impressions of an attorney.");
Katz, 984 F.2d at 424 ("[T]he potential for discovery abuse is ever-present, and courts are authorized to limit discovery to that which is proper and warranted in the circumstances of the case. ") ; Oooenheimer Fund, 98 S. Ct. at 2389 ("'[D)iscovery, like all matters of procedure, has ultimate and necessary boundaries.'"
(Citations omitted.)); Marker, 125 F.R.D. at 124 9
("One'of.the consequences of permitting liberal discovery is.that i
.the parties may engage in successive or, abusive' discovery.")..
Intervenor's Reauests Are Not Limited to New Information Intervenor's failure to demonstrate." good cause" is further established by the~ fact that he is seeking discovery of documents that were created before the close of discovery.
The.
document requests contain no limitation as to documents created after the close of discovery, and are therefore objectionable as overly broad.
Egg Motton v. Owens, 128 F.R.D. 72, 73 (M.D. Pa..
1989) (failure to request production pertaining to a relevant time period makes discovery overly broad.and unduly burdensome).
For example, Intervenor requests that Georgia Power produce-a wide range of documents "directly or indirectly related to" the May 1994 NOV.
Intervenor's Document Request to Georgia Power.at 5-6
[ hereinafter Document Request).
Many of these documents were created before the August 8, 1994 close of discovery.- For example, many of the requests seek documents that are directly or indirectly related to the May 9, 1994 NOV.
The identity of the "immediate supervisors" of George Bockhold (Document Request at
- 7) could have been requested earlier.
In addition, documents in the " personnel file of George Bockhold from May 1, 1994 to present" (Document Request at 7) were by definition in existence as of that date and could have been requested before.7 7As if Intervenor's document requests to Georgia Power were not overly broad enough on their face, Intervenor also asks for all documents that may be responsive to a document request served on the NRC Staff dated February 28, 1995.
10 m
.r.-
w y
,.mw
,e..
,m.
-.y
,,-4.-et,...-._.zw,
,,,&ym,-g
[
4 Intervenor Seeks Privileaed Material As stated earlier, Intervenor has already been provided a
)
wealth of information related to the resolution of the NOV.
This obviously has not satisfied Intervenor, who now seeks disclosure of the privileged settlement negotiations between counsel for Georgia Power and counsel for the NRC Office of Enforcement r
(Document Request at 6), as well as correspondence between individuals and their counsel (Document Request at'5-6).
These settlement discussions, undertaken in a separate enforcement proceeding to which Intervenor is not a party, if discoverable would frustrate the NRC's policy of encouraging settlement of contested decisions.
See Florida Power & Liaht Co. (St. Lucie Plant, Unit No. 2), LBP-79-4, 9 NRC 164, 183-84 (1979)
{
(recognizing the policy, applicable in initial licensing proceedings, to encourage settlement'of contested proceedings (10 i
C.F.R. $ 2.759)).
Similarly, the related communications between Georgia Power and its counsel, as well as communications between individuals and their counsel are protected from discovery in NRC licensing proceedings by the attorney-client privilege, Uniohn v. United l
States, 449 U.S. 383, 389 (1981); Lona Island Liahtina Co.
(Shoreham Nuclear Power Station, Unit 1), LBP-82-82, 16 NRC 1144, 1156-59 (1982); Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-83-70, 18 NRC 1094, 1099-1104 (1983); and by the work product privilege.
10 C.F.R S 2.740(b) (2); Lona Island Liahtina QQ2, LBP-82-82, 16 NRC at 1159-62.
11 l
f
~
t Intervenor Should Not Be Permitted to Disrupt the Proceedina's Schedules Intervenor's Motion suggests that Intervenor has always intended to conduct further discovery after resolution of the NOV.
If this were the case, Intervenor should have alerted the d
Board and parties when schedules were being proposed and agreed-upon.
As discussed above, Intervenor's own proposed schedule made no allowance for such discovery.
Intervenor therefore should not now be allowed to disrupt the schedule that has been set or the time needed for the other parties to complete their i
preparation for hearing.
Egg Cash Express. Inc. v.
U.S.,
23 C1.Ct. 136, 137 (1991) ("When a party decides to ignore [a]
court's discovery schedule and substitute its own, or otherwise fails to comply with the court's orders and Rules, dismissal is proper."); Damiani v. Rhode Island Hosoital, 704 F.2d 12, 16 (1st Cir. 1983) ("When a plaintiff brings a lawsuit.
necessarily involving detailed and lengthy discovery, he must adhere strictly to the rules.
The day has long since passed when we can indulge lawyers the luxury of conducting lawsuits in a manner and at a pace that best suits their convenience.
The processing of cases must proceed expeditiously..
").
This is particularly the case here where serious allegations raised by Intervenor in this proceeding beginning in 1992 remain unresolved.
12
i The' Document Reauests Directed to Individuals Do Not Comolv i
with the NRC's Rules of Practica As noted in Georgia Power's March 14 letter, the document requests directed toward individuals are inappropriate.
The
'NRC's Rules of Practice only provide for the filing of document l
requests against other parties in the proceeding.
See 10 C.F.R.
$ 2.741(a) ("Any narty may serve on any other narty.
.)
(emphasis added); Kerr-McGee Chemical Corn. (West Chicago Rare-Earths Facility), LBP-85-1, 21 NRC 11, 21 (1985).
Even if i
discovery were open--and it is not--document discovery against non-parties would require a subpoena duces tecum personally served on the individuals and their individual counsel.
10 C.F.R. $ 2.720; Kerr-McGee, 21 NRC at 22 (citing Pacific Gas &
Elec. Co. (Stanislaus Nuclear Project, Unit 1), ALAB-550, 9 NRC 683 (1979)).
Intervenor has not obtained any subpoena for nonparty discovery.
Intervenor's document requests directed at nonparty individuals and his Motion simply ignore NRC Rules of Practice.
I t
b 13 i
I
. _ _ _ _. - - _ _ _. _ _. - - _ ___,m
conclusion For all of the reasons stated above, Intervenor's Motion should be denied.
1 Respectfully submitted, ames E. Joiner John Lamberski TROUTMAN SANDERS Suite 5200 600 Peachtree Street, N.E.
Atlanta, Georgia 30308-2216 (404) 885-3360 i
Ernest L. Blake, Jr.
l David R. Lewis i
SHAW PITTMAN POTTS & TROWBRIDGE 2300 N Street, N.W.
Washington, D.C. 20037 (202) 663-8000 counsel for Georgia Power Company i
Dated:
March 28, 1995 i
l 14
UNITED STATES OF AMERICA DOCKETED NUCLEAR REGULATORY COMMISSION USNRC BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
'95 WR 29 A11 :13 GEORGIA POWER COMPANY, Docket Nos. 50-424-OLA-50-425-OLA fFIC[(N CE 3 )V h[
.l#
g_t al.
OCKEilNu.
(Vogtle Electric Re: License Amendment IS M' h Generating Plant, (Transfer to Southern Units 1 and 2)
Nuclear)
ASLBP No. 93-671-01-OLA-3 CERTIFICATE OF SERVICE This is to certify that copies of the within and foregoing
" Georgia Power Company's Opposition to Intervenor's Motion Requesting an Order Requiring Immediate Reoponse to Documnet Requests" were served on all those listed on the attached service list by express mail delivery or, where indicated with an asterisk, by facsimile.
This is the 28th day of March, 1995.
hn Lamb (rski TROUTMAN SANDERS Suite 5200 600 Peachtree Street, N.E.
Atlanta, GA 30308-2216 (404) 885-3360
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD I
In the Matter of i
GEORGIA POWER COMPANY, Docket Nos. 50-424-OLA ;
Al A1 50-425-OLA-3 l
(Vogtle Electric Re: License Amendment Generating Plant, (Transfer to Southern Units 1 and 2)
Nuclear)
ASLBP No. 93-671-01-OLA-3 SERVICE LIST
- Administrative Judge Stewart D. Ebneter Peter B.
Bloch, Chairman Regional Administrator l
Atomic Safety and Licensing USNRC, Region II Board 101 Marietta Street, NW U.S.
Nuclear Regulatory Suite 2900 Commissign Atlanta, Georgia 30303 t
Washington, D.C.
20555 Office of the Secretary L
- Administrative Judge U.S. Nuclear Regulatory i
James H.
Carpenter Commission
~
Atomic Safety and Licensing Washington, D.
C.
20555 Board ATTN:
Docketing and 933 Green Point Drive Services Branch Oyster Point i
Sunset Beach, NC 28468
- Mitzi A.. Young, Esq.
Charles Barth, Esq.
- Administrative Judge Office of General Counsel Thomas D. Murphy One White Flint North l
Atomic Safety and Licensing Stop 15B18 Board U.S.. Nuclear Regulatory i
U.S.
Nuclear Regulatory Commission
)
Commission Washington, D. C. 20555 Washington, D.C. 20555 l
- Director,
- Michael D. Kohn, Esq.
Environmental Protection Kohn, Kohn & Colapinto, P.C.
Division 517 Florida Avenue, N.W.
Department of Natural Washington, D.C.
20001 Resources 205 Butler Street, S.E.
Office of Commission Appellate Suite 1252 Adjudication Atlanta, Georgia 30334 One White Flint North 11555 Rockville Pike Rockville, MD 20852 1
.